State v. Henry

• Citation: 80 So. 133,16 Ala.App. 559
• Decision Date: 04 June 1918
• Docket Number: 6 Div. 510
• Parties: STATE ex rel. RAMBOW v. HENRY, County Treasurer.
• Court: Alabama Court of Appeals

80 So. 133

16 Ala.App. 559

STATE ex rel. RAMBOW
v.
HENRY, County Treasurer.

6 Div. 510

Court of Appeals of Alabama

June 4, 1918

Rehearing Denied June 24, 1918

Appeal from Circuit Court, Jefferson County; H.A. Sharpe, Judge.

Mandamus by the State of Alabama, on the relation of C.T. Rambow, against M.V. Henry, as Treasurer of Jefferson County. From judgment for respondent, petitioner appeals. Affirmed.

Certiorari denied 80 So. 134.

Allen, Bell & Sadler, of Birmingham, for appellant.

W.K. Terry, of Birmingham, for appellee.

SAMFORD, J.

At the time of the issuance of the certificate of attendance before the grand jury, in 1892, which certificate is made the basis of this suit, it was provided (Code 1886, § 4887) that fees of witnesses summoned by the state to appear before the grand jury must be taxed against the defendant if he was convicted, but if the defendant was not convicted, or the indictment [80 So. 134.] [16 Ala.App. 560] was withdrawn and filed, or prosecution abated, or if costs were imposed on defendant and execution returned, "No property found," or if no indictment was returned by the grand jury, or if nol. pros. was entered, such fees must be paid by the county, in the manner specified in section 4889. By section 4886 of the Code 1886, it was provided that witnesses in criminal cases were entitled to the same fees as in civil cases. But it will be observed, in cases where the defendant was never put upon trial, no provision was made for the payment of the witness fees of the state's witnesses. Hence, although the witness had attended, and was entitled under the law to his fees, he could never be paid. The Legislature seems to have noted this unfairness, and in Acts 1896 and 1897, p. 17, passed an act providing that in all cases where there had been indictments found by the grand juries, and the defendant had not been arrested within three years from the date of the indictment, the fees due state's witnesses should become charges against the fine and forfeiture fund of the county, but expressly providing that the act should apply only to claims accruing after the passage of that act. Section 1 of this act was carried into the Code of 1907 as section 6661, which section, as adopted in the Code, omits the proviso in the original act, and, as these witnesses were by law entitled to fees as such and only lacked a mode of enforcement, it would appear that the lawmakers were undertaking to do tardy justice to that...